The Chief Executive Officer v. Shafi Madhab Peria Pallivasal

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 06.04.2016

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)No.470 of 2016 (PD) and C.M.P(MD)No.2051 of 2016 1)The Chief Executive Officer, Tamil Nadu Wakf Board, Chennai.

2.The Superintendent of Wakf Ramanathapuram Range, Tamil Nadu Wakf Board.

.. Petitioners Vs.

1.Shafi Madhab Peria Pallivasal Sivakasi Taluk & Town Represented its President, S.P.J.Nahoor Meeran.

2.Government of Tamil Nadu, Represented by its Secretary Backward Classes and Most Backward Classes and Minorities Welfare (T2) Department, Chennai.

.. Respondents PRAYER: Civil Revision Petition is filed, under Article 227 of the Constitution of India, to strike off the Wakf Original Petition in W.O.P.No.1 of 2016 on the file of the Wakf Tribunal/Sub Court, Srivilliputtur.

For Petitioners : Mr.K.K.Senthil For Respondents : Mr.Mahaboob Athiff for For R1 M/s.Ajmal Associates

ORDER

This petition has been filed by the petitioners to strike off the Wakf Original Petition in W.O.P.No.1 of 2016, on the file of the Wakf Tribunal/Sub Court, Srivilliputtur filed by the first respondent.

2.The petitioners are the respondents 1 & 2 in W.O.P.No.1 of 2016, on the file of the Wakf Tribunal (Sub Judge), Srivilliputhur. The first respondent filed the said W.O.P.No.1 of 2016, for declaration that the order, dated 03.03.2015, passed by the first petitioner and the order of the second respondent, dated

22.12.2015, confirming the order of the first petitioner, is illegal and not binding and for declaring that the communication, dated 09.01.2016 issued by the second petitioner is illegal and for permanent injunction.

3.According to the first respondent, Wakf is a registered Wakf, registered under Wakf Act, 1995. The first respondent owns movable and immovable properties. The first respondent is managed by 11 members elected by Administrative Committee. The term of office bearers is three years. The present office bearers were elected on 20.11.2011. The first petitioner did not pass any formal order recognizing the election of office bearers, but he did not object to the election or rejected their election. The term of office bearers was expired in November, 2014. The first respondent was called for General Body Meeting, which was held on 09.11.2014 and necessary arrangements were made for election of office bearers. The first petitioner passed an order that the election to the various offices of the first respondent should not be conducted, which was communicated by the first petitioner, by its letter dated, 30.10.2014.

4.The first respondent and office bearers were making arrangements to construct a school building for running a English Medium School. It will benefit entire community. The first respondent and other Office bearers obtained necessary building permission for construction of School building. The existing School building is in a dilapidated condition necessitating repair work. Some persons, inimically disposed, filed W.O.P.No.1 of 2013 alleging that construction of school building was carried on in an unilateral manner, contrary to provisions of law and prayed for taking over management of Pallivasal by Wakf Board. 5.While so, the second petitioner gave a report dated 04.11.2013 to the first petitioner that School building is being constructed without prior permission of first petitioner.

The first petitioner after obtaining report from the Inspection Committee by the order, dated 03.03.2015, assumed the charge of Pallivasal. The first respondent filed revision before the second respondent, which was dismissed by the order, dated 22.12.2015. The first respondent filed W.O.P.No.1 of 2016, challenging the orders of first petitioner, dated 03.03.2015 and second respondent, dated 22.12.2015. Now the petitioners filed the present Civil Revision Petition to strike out the W.O.P.No.1 of 2016 filed by the first respondent on the ground that the order passed by the second respondent under Section 65(2) of the Wakf Act is final and Wakf Tribunal has no power to entertain W.O.P.No.1 of 2016 filed by the first respondent. W.O.P.No.

1 of 2016 filed by the first respondent under Section 83(2) of the Wakf Act, is only abuse of process of Court.

under Section 65(2) of the Wakf Act. The Tribunal exceeded its jurisdiction when it entertained W.O.P.No.1 of 2016 filed by the first respondent.

6.The learned counsel for the petitioners relied on the following judgments:

(i)1977(2) MLJ (P.Ananthakrishnan Nair vs.

Dr.G.Ramakrishnan and another) "4..... When the statute expressly makes an order of the Subordinate Court final, then it means that the concerned statute is not prepared to provide another remedy as against it. In such cases an appeal would not lie to the higher Court by invoking the ordinary common law."

ii) 2009(2) MLJ 342 (M.Ali Hussain vs. Tamil Nadu Wakf Board, rep., by its Secretary, Chennai and another) "4.The doubt as to whether the petitioner could approach the Wakf Tribunal against the order impugned in the revision, has arisen on account of the fact that Section 64(1) empowers the Board to remove a Mutawalli for various reasons enlisted in clauses (a) to (k). Section 64(4) provides a remedy of appeal against the order of removal passed under Section 64(1), only if such removal was for reasons contained in clauses (c ) to (j) of sub-section (1) of Section 64. In other words, the remedy of appeal available under sub-section (4) of Section 64 is not available to a person who is removed for reasons contained in clause (a) or clause (b) or clause (k) of sub-section (1).

In the case on hand, the petitioner was removed on the allegation of misappropriation and fraud, covered by clause (k) of Section 64(1). Therefore the petitioner cannot avail the remedy of appeal under sub-section (4). The learned senior counsel for the petitioner and the learned Standing Counsel for the Wakf Board are in agreement on this aspect namely that the petitioner cannot invoke Section 64(4) to file an appeal to the Tribunal, as he was removed in terms of Section 64(1)(k)."

7.Per contra, the learned counsel appearing for the first respondent contended that Wakf Act is a special self contained Code. Wakf Tribunals are constituted for speedy disposal of disputes with regard to Wakf, Wakf properties and management of Wakf. As per Sections 64 and 83 of the Wakf Act, W.O.P.No.1 of 2016 filed by the first respondent, is maintainable. As per Section 85 of the Wakf Act, jurisdiction of Civil Court is barred. 8.The learned counsel for the first respondent relied on the following judgments.

I) 2011 (1) CTC 636 (Board of Wakf, West Bengal & another Vs.

Anis Fatma Begum & another) "14.Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf of Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal."

ii)2010(2) CTC 699 (Tamil Nadu Wakf Board v. Janab K.S.M.A.Mohamed Mansoor) "13.The Wakf Act provides a revisional remedy against the order passed by the Wakf Board under Section 65(1) and the revisional power is conferred on the State Government. Hence, without filing a Revision under Section 65(2) of the Wakf Act, the respondent is not entitled to file an Application before the Wakf Tribunal under Section 83(2) of the Act. In the judgment reported in M.Ali Hussain v. Tamil Nadu Wakf Board, 2009(2) MLJ 342 also, this position has been made clear and this Court has held that against the order passed under Section 65(1) of the Act, the remedy lies only by filing a Revision before the State Government.

Hence, the respondent can only approach the State Government, if he is aggrieved by an order passed under Section 65(1) and without filing a Revision, it is not open to the respondent to file an Application before the Tribunal under Section 83(2). Hence, the Revision Petition is allowed and the W.O.P.No.2 of 2009 on the file of the Wakf Tribunal/Sub-Court, Dindigul is struck off. There is no need to pass any orders in the Miscellaneous Petitions and the same are closed."

iii)2011-2 L.W.142 (Chief Executive Officer & another v. Syde Peer Shah Mohideen Khadari) "3.As far as the second issue relating to the decision of the Board to take over the management of the Dharga in question is concerned, the aggrieved person could very well avail the remedy of approaching the Tribunal constituted under Section 83 of the Wakf Act. That remedy has not been availed in this case. When this is pointed out, the learned senior counsel appearing for the respondent has fairly submitted that if liberty is given to the respondent, certainly, he will avail such a remedy, as the matter has been pending before this Court for quite some time. In our opinion, the question as to

whether the Wakf Board has taken over the management of the Dharga by following the provisions of Section 65 of the Wakf Act or not can be very well agitated before the Tribunal, as such dispute also will fall under the purview of the Tribunal, and in that view, the respondent could avail such a remedy, as has been held by this Court in the judgment in Salam Khan v. The Tamil Nadu Wakf Board and others, 2005(1) L.W.676. The very same principle has also been held and approved by the Apex court in the judgment in Board of Wakf, West Bengal v. Anis Fathma Begum and another, (2010) 12 SCALE 323 = (2010) 4 KLT 765........" 4.

In view of the above, the writ appeal is allowed and the impugned order is set aside only to the extent where the learned Judge has set aside that portion of the order and the notification, whereby the Wakf Board has brought the Dharga in question under its direct control. The respondent is at liberty to approach the Tribunal questioning that portion of the order and the notification as well. As the respondent had approached this Court with the writ petition, we permit the repsondent to approach the Tribunal on or before 15.03.2011.

In the event such an application is filed questioning the order and the notification of the Board to bring the Dharga under its direct control, the same shall be entertained by the Tribunal without raising the question of maintainability and decide the same on its own merits keeping in mind the provisions of Section 65 of the Wakf Act also. Consequently, M.P.No.1 of 2010 and M.P.No.1 of 2011 are closed. No costs."

9.I have heard the learned counsel appearing for the petitioners and the respondents and also carefully perused the entire materials on record and judgments relied on by the parties. 10.The point for consideration in this Civil Revision Petition is:

I) whether W.O.P.No.1 of 2016 challenging the order passed by the second respondent under Section 65(2) of the Wakf Act is maintainable.

11. It is well settled by judicial pronouncements that Wakf Act is a Special enactment and it is a self contained Code. The State Government is empowered to constitute Tribunal for determination of any dispute, question or other matter relating to Wakf or Wakf property under the Wakf Act.

Section 83(1) and (2) of the Wakf Act, 1995 reads as follows: "83.Constitution of Tribunals, etc., (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and

define the local limits and jurisdiction under this Act of each of such Tribunals.

(2) Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf."

12.The first petitioner passed an order dated 03.03.2015 under Section 65(1) of the Act and the Revision filed by the first respondent to second respondent under Section 65(2) of the Act, was dismissed by the order dated 22.12.2015. According to the petitioners, the orders passed by the second respondent is final as per the Act and Wakf Tribunal has no jurisdiction to entertain W.O.P.No.1 of 2016 either on original jurisdiction or appellate jurisdiction. The learned counsel appearing for the petitioner relying on the judgment of this Court reported in 1977(2) MLJ 98 (P.Ananthakrishnan Nair vs. Dr.G.Ramakrishnan and another) and contended that when the statute expressly makes an order of the Subordinate Court final, an appeal would not lie to the higher Court by invoking the common law.

This contention is untenable and the judgment is not applicable to the facts of the case. 13.In the Judgment reported in 2011(1) CTC 636 Board of Wakf, West Bengal & another Vs. Anis Fatma Begum & another the Hon'ble Apex Court held that the words any disputes, question or other matters relating to a Wakf or Wakf property have wide connotation. This Court in the judgment reported in 2010(2) CTC 699 (Tamil Nadu Wakf Board v. Janab K.S.M.A.Mohamed Mansoor) held that under Section 83(2) of the Wakf Act wide powers are given to the Tribunal to decide any dispute and it is in nature of general Superintendence over the Wakf and Wakf properties and it can be invoked only when no other remedy by way of revision or appeal is available.

14.The Division Bench of this Court in the judgment reported in 2011(2) L.W.142 (Chief Executive Officer and another v. Syde Peer Shah Mohideen Khadari) held that the question as to whether the Wakf Board has taken over the management of the Dharga by following the provisions of 65 of the Wakf Act or not can be agitated before the Tribunal, as such dispute also will fall under the purview of the Tribunal. The said judgment is squarely applicable to the facts of this case. The first respondent is challenging the orders passed by the first petitioner and second respondent under Section 65(1) and 65(2) of the Act respectively. The Tribunal has jurisdiction as held by the Division Bench, to entertain a petition filed under Section 83(2) of the Act challenging the order passed under Section 65 of the Wakf Act.

15.In the result, the Civil Revision Petition is dismissed as devoid of merits. No costs. Consequently, connected miscellaneous petitions are also dismissed.

Sd/- Assistant Registrar(P&A) /True copy/ Sub Assistant Registrar To The Wakf Tribunal/Sub Court, Srivilliputtur.

+one cc to M/s.Ajmal Associates, Advocate in SR.No.19562 +one cc to M/s.K.K.Senthil, Advocate in SR.No.19357 am CSL/SKS-RR/29.04.2016 :7P/4C C.R.P(MD)No.470 of 2016 (PD) 06.04.2016